Selection of a woman on maternity leave for redundancy and offers of suitable alternative employment

This article should be read in conjunction with another article on this website. There is a link to that article at the bottom of this one. The other article deals with all aspects of redundancy while on maternity leave. This article deals only with two aspects of this area of law: selection and what ‘suitable’ means. This is in the context of the law that says a woman on maternity leave at risk of redundancy must be offered any job that is suitable and available. This area of law is found in Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999. A dismissal in breach of a woman's rights under regulation 10 is, by regulation 20, automatically unfair.

'Normal' i.e. non maternity related redundancy law also deals with suitable alternative vacancies and while that law still applies to ladies on maternity leave it is not covered here. This article deals with suitable alternative jobs in connection with a woman facing redundancy while she is on maternity leave.

Regulation 10 of the maternity regulations is an example of permitted positive discrimination in that the woman on maternity leave can jump the queue to get an alternative job. It is almost an automatic right to get the job. In the original version of this article we reported on one case which was only at the tribunal level but which is on the question of what ‘suitable’ means. The case is called Bentley v The Body Shop. At the time of originally drafting this article Bentley appeared to be about the only judgement on ‘suitable’. Since that time, however, a new case has been reported. This was by the EAT in Simpson v Endsleigh Insurance Services Ltd [2011] ICR 75, EAT. Before dealing with Simpson we will return to Bentley.

The Bentley judgement reveals that the Employment Tribunal had carried out its own inquiries about previous cases on the question of the word 'suitable' but had not found any. The case was in 2000. Counsel for Ms Bentley (i.e. her barrister) said, in connection with the word 'suitable', that the relevant right was to be given a suitable alternative job regardless of the fact that there was another more qualified candidate. Counsel for the Company said that the relevant provision was meant to protect those employees on maternity leave by giving the right to be considered for alternative employment but not the right to be offered it over and above better candidates. The Tribunal rejected this latter interpretation.

The Employment Tribunal found that Regulation 10 is not subject to the qualification that the woman is the more competent candidate for a vacancy and that, therefore, applying the law must involve some element of positive discrimination against equally or more competent male employees. The tribunal said that the law meant that the women on maternity leave had 'some preference over equally or better qualified men'. The Tribunal seems to have only considered this provision in respect of other male candidates but, of course, the provision equally applies against any other candidates.

However, it went on to say that the law does not 'accord any entitlement to a returning woman to be appointed to any job she is physically capable of performing if she would be very much less competent in performing it than the male candidate'. It also said that a line must be drawn somewhere otherwise the word suitable ceases to have meaning and that a job would not be suitable if the woman were able to perform its duties but to do so relatively incompetently when compared to a male candidate. Bentley was in 2000 and is “only” a tribunal decision and is, therefore, not to be relied on as any sort of precedent. Bentley, however, must now be considered in the light of a 2011 case called Eversheds v De Belin. We have reported on this case separately elsewhere in this website. It must also be considered in the light of the Simpson case which was also in 2011.

The De Belin case is an important one. The leading book on employment law for solicitors is called ‘Harvey’s on Industrial Relations and Employment Law’. It says that the De Belin case is the first appeal court case on Regulation 10 in the context of a scoring in a redundancy situation. The De Belin case involved a firm of solicitors. The claimant was male and was one of two employees in a redundancy selection pool. The other was a female employee on maternity leave. The scores resulting from redundancy selection were very close but just in favour of keeping her and dismissing him: this is what happened. The man complained successfully to the tribunal and in the EAT that the firm of solicitors had sexually discriminated against him. It did so by giving the woman a theoretical maximum score for one of the scoring criteria. That criterion related to performance measured over a time that the woman was on maternity leave so could not be scored. Mr De Belin had suggested measuring her performance during the period before she commenced maternity leave as had this been done he would have been retained. Eversheds did not do this but simply gave her the maximum score for that part of the overall scoring process. The EAT decided that, whereas the law prevented the woman being put at a disadvantage on account of maternity leave, it did not mean she should be put at an advantage as had happened here.

That part of the judgement is clear. It seems also to be clear that the EAT held that the special preferential treatment provision of Regulation 10 did not mean that the woman should have retained her job even if she had scored less than the other employee. Indeed had she been retained, because she was on maternity leave, in preference to a male employee who had better scores in the selection exercise, the result would have been sex discrimination against that employee.

On first reading it appears difficult to reconcile De Belin with Regulation 10 but we will explain how we do so. Firstly, we should remind ourselves what Regulation 10 means - it is that a woman on maternity leave is entitled to be treated more favourably than otherwise comparable male employees if her job becomes redundant during maternity leave and there is a suitable alternative post that is, or becomes, available, up to the point of her return to work. This applies even if a male (or female) candidate available who is better qualified. It also applies if that other candidate is also under notice, or at risk of redundancy. Having said that about Regulation 10 we have to reconsider de Belin which states that the woman is not entitled to be advantaged in a redundancy scoring exercise. The way we reconcile Regulation 10 and De Belin is by analysing the situation in terms of vacancies. In a redundancy situation where a number of jobs are being reduced, a scoring system must be used. The woman on maternity leave must be treated in a De Belin compliant way. If the result is that she scores less she is not offered one of the remaining jobs. The way to think about this is that there are, in fact, no vacancies as the successful candidates in the scoring exercise simply retain their jobs. If one incorrectly thinks about the De Belin situation as there being 2 people at risk of redundancy and one vacancy then the woman should have got the job because of Regulation 10 regardless of whether she scored less than the man. De Belin only makes sense if one considers that the EAT did not believe that the one job remaining after the redundancy exercise was a vacancy. We know that the EAT was aware of Regulation 10 because it is mentioned in the judgement albeit in a slightly different context – it is simply mentioned as an example of permitted positive discrimination.

In different types of redundancy situations there may be vacancies – for example where a number of jobs disappear but there are other different jobs, then those different jobs are “vacancies” and the woman on maternity leave is entitled to be offered one of them in preference to a more suitably qualified man. Another common type of redundancy situation which in fact is increasingly common is the approach of deleting all existing jobs and creating (fewer) new jobs in a new structure. Those new jobs are 'vacancies' and therefore covered by Regulation 10 if one of the 'at risk' employees is on maternity leave. The policy justification for the distinction between reduction of jobs but retention of some existing ones and removal of all jobs but creation of some new ones is difficult to identify, let alone justify. In one case the woman on maternity leave gets no special preference but in the other she is guaranteed the job. It would appear that the organisation of the restructure is a matter for the company so this creates a significant loophole in the protection given by regulation 10.

This method of thinking about the different situations in terms of vacancies means it is easy to reconcile de Belin with Regulation 10 and with the Bentley line of argument that suggests that the woman is entitled to preference over a more suitably qualified man. Prior to de Belin there seemed to be two widely held but opposing views. One was that when x jobs reduced to y via redundancy the remaining jobs were vacancies and the woman on maternity leave was entitled to one of them. The other view was that the remaining jobs were not vacancies and therefore the woman was not entitled to one of them. The de Belin decision shows firmly that the remaining jobs are not vacancies and therefore the woman is not entitled automatically to one of them.

We appreciate that one could have the situation where the woman and others are scored in respect of the disappearance of their jobs but that there are also other new jobs available. The woman would not be given preference over anyone else in the process of deciding whether she should retain her job but she would not be treated to her detriment. Thereafter, having lost her job as a result of the scoring she would now be entitled to be offered one of the suitable alternative new jobs even in preference to a man or woman who had scored higher than her in the original scoring process. In other words having scored less than one of the other 'losing' employees in the redundancy scoring process the woman must nevertheless be given preference over those employees in respect of any available and suitable new jobs. This guidance in this paragraph must, however, be read in conjunction with the existing and sensible guidance set out in the Bentley case as to jobs that are clearly not suitable.

Finally, we return to Simpson. The full name of this case is Simpson v Endsleigh Insurance Services Ltd [2011]. It was concerned with what 'suitable alternative employment' means. Ms Simpson’s job in London ceased to exist but there were vacancies in a different office in Cheltenham. She was given the chance of showing interest in those jobs but did not do so. She wasn’t offered any of them because the employer didn’t think they were suitable as they involved relocation and the new requirement of working at weekends. The Tribunal thought that some of the Cheltenham jobs’ content was suitable for her but not the terms and conditions and location. It, therefore, rejected Ms Simpson’s claim of automatic unfair dismissal as a result of a breach of Regulation 10 and she appealed to the EAT. The EAT decided against Ms Simpson on the basis that Regulation 10 requires both that there must be a job that is suitable and that suitable must be considered in terms of job content (under regulation 10(3)(a)) and in terms of comparability of terms and conditions including location (under regulation 10(3)(b)). Ms Simpson lost her argument that if the job content was suitable then it must be offered on comparable terms. If she had succeeded in this it would have imposed an obligation on employers to offer comparable terms and conditions to the employee in the new job regardless of the terms and conditions actually applicable to that new job.

The EAT also decided that it is for the employer, not the employee, to judge the suitability of a job: ''… at the end of the day, it is up to the employer, knowing what it does about the employee, to decide whether or not a vacancy is suitable.'

This part of the decision means that an employer must conduct an objective assessment of the available roles both in terms of job content and terms and conditions to work out if any are suitable. The EAT doubted that it would be proper for the employer to use an interview to work out whether or not the job was suitable but as we said it must carry out a review of the available roles to judge whether any are suitable. If they are they must be offered to the woman on maternity leave whom it is not practicable to continue to employ under her old role. The EAT’s judgement seems to suggest that it was open for the employer to use the lack of interest in the role by Ms Simpson as part of its consideration that it wasn’t suitable for her. This is not the same as a finding that Ms Simpson had to apply for the role – the law is clear – she has the right to be offered any suitable role and the employer’s duty is not met by simply offering the chance of an interview.

As we said at the outset of this article this is only a part of the overall law on redundancy and pregnancy. As with the other article we accept that this article is long and detailed. From experience, however, we know that the employees and companies contacting us in response to these articles appreciate the detail of these articles.

We can also update this article in November 2014 to look briefly at the case of Sefton Borough Council v Wainwright. In that case a reorganisation took place to mean that two jobs disappeared and one was created. Mrs Wainwright was employed in one of the jobs that had gone. The Council gave the new job to a man saying he was better and claimed that Mrs Wainwright right to a regulation 10 job only arose when the reorganisation was complete. In other words it claimed that she was only entitled to be considered for vacancies when the vacancy had been filled and therefore at a time when there were no vacancies. The case specifically said that a company's obligation to offer the woman on maternity leave a suitable alternative vacancy arose as soon as it was clear that she would not return to her previous job because of the redundancy situation affecting it.

This was clearly always going to be a losing argument and so it transpired. The regulation 10 right arises when the redundancy is known about not when the woman is dismissed. A more important aspect of the Sefton case is that it appears to say that an employer did not have to offer every vacancy that was available and suitable just one. Specifically the Judge said "I can also accept [the] submission that regulation 10 does not define “vacancy” and does not expressly oblige an employer to offer every suitable vacancy or, indeed, any particular vacancy if more than one might be suitable". We are not sure that this is right as the regulation 10 right says that 'where there is a suitable available vacancy, the employee is entitled to be offered [it]. It doesn't say where there are alternative vacancies the employee is entitled to be offered one. We said that the judgment only 'appears' to say that as later it also says :

.. in order to afford the Claimant the protection she was entitled to under regulation 10 once her position was redundant (on the ET’s finding that was July/August 2012), the Respondent was obliged to assess what available vacancies might have been suitable and to offer one or more of those to the Claimant. She should not have been required to engage in some form of selection process.

We have put the words 'one or more' in bold in the above extract to emphasise those words. Of course, in most cases, a woman offered a suitable job will take it and so it doesn't matter that there are others that she hasn't been offered. If this situation arises in your case it will be worth reading the Sefton case very carefully and taking proper advice.

Please do not hesitate to contact this firm if you are an employee or employer dealing with redundancies during maternity leave and wish to obtain legal advice.